It is common for many to be dissatisfied with the results of their family law cases. No matter how hard they fought or how long they worked at it, sometimes a family law case litigant feels he or she got the short end of the stick, that the court acted contrary to the law and/or the facts, that the court did injustice with its rulings in the case.
Courts can and do make mistakes sometimes. Courts can and do treat some people unfairly and in violation of the law.
If you feel wronged by the court, your first impulse might be to file an appeal. But should you appeal? An appeal is a decision you should not make rashly or hastily. The appellate courts follow different rules than trial courts follow (for example, an appeal is not a “second bite at the apple” situation; there is no opportunity to re-try the case on appeal or to present new evidence, in case you thought filing an appeal would give you another chance to plead your case to a new judge or to have that text message admitted into evidence or to present that new witness). And not every bad trial court decision is reversible on appeal. Here are some things to consider when contemplating filing an appeal in your family law case.
First, filing and litigating an appeal is expensive (for most people, very expensive). Even though you are not conducting discovery or questioning witnesses in an appeal setting, there is still a lot of work that goes into the appeals process. As you are already aware, lawyers generally do not work for free, and work done on appeal is no exception. And there is always the chance that even if you win at the appellate court level, the opposing party could appeal to the Utah Supreme Court, which would result in more time, work, and money expended on your part.
Second, and this may come as a surprise to some, but not all attorneys know how to appeal a case, let alone appeal successfully. Even some family litigators who have argued appeals themselves do not consider themselves experts at appeals. Appeals require a slightly different skill set than litigating at the trial level. So, if you decide to appeal your case you may find yourself having to retain a new attorney for that purpose.
Third, and this cannot be stressed enough, there is no guarantee you will win on appeal. A complicating factor here is that not every mistake a court makes is reversible error. For instance, if the trial court overlooked certain evidence that would have had no impact on the ultimate findings of fact, conclusions of law, and rulings; that is known as “harmless error,” and that makes sense. Simply pointing out a mistake that did not result in an inaccurate finding or unfair decision will not result in a win on appeal.
There are different standards of review of the trial court’s actions that further complicate this analysis. The standard of review is the principle by which the appellate court will judge the outcome of the trial. If you are lucky, the issue on appeal for your case will require the appellate court to review the case “de novo.” This means the court will look at the issue with no deference to the trial court’s findings. The appellate court cannot choose this standard willy-nilly, the law dictates here, so it depends on what your specific issue is.
Another appellate standard of review is “clear error.” For instance, if you are seeking to appeal factual findings by the trial court, the appellate court will only overturn if the trial court’s findings were clearly and indisputably wrong. That is a tough standard to go up against as most trial courts are thorough in their findings of fact when it comes to family law cases precisely because they do not want to be overturned on appeal.
Another appellate standard that is relevant for you to consider is the “abuse of discretion” standard. Abuse of discretion occurs when a trial court makes a ruling that is unreasonable, erroneous, or arbitrary, and not justified by the facts or applicable law. The abuse of discretion standard gives the most deference to the trial court, which makes prevailing on an abuse of discretion basis especially unlikely. The trial court typically has broad discretion to determine child custody and parent time, child support, alimony, property and debt division, and other commonly litigated family court issues.
Keep in mind that there is only so much time in which you can file an appeal. Fail to meet the deadline, and even if you had a winning appellate case, you’re out of luck.
Some trial attorneys do not want to file appeals, and so they discourage their clients from appealing. Other attorneys have no objection to filing an appeal that has merit but will discourage their clients from filing an appeal when their attorney believes an appeal cannot be won. So, if you are contemplating an appeal, it would be wise to get a second or third opinion.
There are many things to consider when deciding whether to appeal the judgment in your family law case. Wisdom and prudence are essential here. Not every case can be successfully appealed. Indeed, most cases cannot be successfully appealed because it is rare for trial courts to commit the kinds of major errors that form the basis of a successful appellate case. Appeals cost a lot of money—so not even all winning appellate arguments may be worth it. Consult with your family attorney and take seriously what your attorney says about your chances of winning on appeal. Some trial attorneys do not want to file appeals, and so they discourage their clients from appealing. Other attorneys have no objection to filing an appeal that has merit but will discourage their clients from filing an appeal when their attorney believes an appeal cannot be won. So, if you are contemplating an appeal, it would be wise to get a second or third opinion.
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